Kinsland v. . Grimshawe ( 1907 )

CoNNOR, J.,

after stating tbe case: His Honor could not have directed judgment of nonsuit. Tbe testimony presented questions for tbe jury. There was ample evidence to show tbe contract as found by the jury. This is not seriously controverted by defendant, bis defense resting upon other grounds. In regard to tbe second issue, tbe defendant says that be extended tbe option of 27 Hay, 1903, to 20 August, 1903. He says that, on 21 August, 1903, plaintiff and Bourne asked for an extension of two months, “which I made it.” It is true that, at tbe expiration of that time, 20 October, 1903, Graves failed to take tbe land, and, unless renewed by defendant, the option was at an end and defendant was under no further liability to Graves and plaintiff; but, on 16 December, be entered into a written contract of sale with Graves, expressly referring to tbe option of 27 May, 1903, and its extension, which Graves accepted. This contract was made as an acceptance of the option, and Graves deposited in the bank $5,000 as a guaranty of his performance of tbe same. He was given until 20 February, 1904, not to accept tbe option, but to have survey made and title investigated. Graves thus became a purchaser at the price and in accordance with the terms of the option of 27 May. The contract provided for -further time, if, for “providential reason,” it should not be consummated. On 19 February, 1904, another contract was entered into, referring to the option of 27 May, 1903, and the time was again extended, on account of “providential reasons,” to April 20, 1904. This contract, after reciting several stipulations, concludes: “The same shall be conveyed to LI. E. & S. T. Graves, or their assigns, at the price and in accordance with the terms of 27 May, 1903.” The written evidence clearly sustains his Honor’s instruction in respect to the second issue. The transaction was finally closed upon the terms of the option of 27 May, T9 03, which was the result of the contract made between plaintiff and defendant in April, 1904. The defendant, however, insists that plaintiff lost his right to commissions because the agency was terminated in December, 1903. Defendant says that plaintiff asked him if he was going to pay him the commissions, and thkt he said he was not, because defendant had become Graves’ agent.

It is not contended that plaintiff released defendant -by any express terms, or assented to the termination of the agency otherwise than by the contract which he made with Graves.

Did this contract place plaintiff in a position antagonistic to defendant ? It seems that Graves was buying for the purpose of selling at a profit.' The terms of the contract between Graves and defendant were fixed at the beginning of the negotiation. There was never any question as to the price which Graves was to pay or which defendant was to take. The only effect of the agreement between Graves and the plaintiff was to stimulate Graves to take the land by aiding him in selling at a profit. This was in no sense antagonistic to defendant’s interest. If plaintiff succeeded in sell ing the option for Graves, it secured to defendant its acceptance and a sale of the land. We are unable to see bow there was any treachery or double dealing which was calculated to prevent defendant from making a more advantageous sale. ITe had contracted to sell to Graves at his price, and, it seems, was at all times willing to do so. This is shown by the several extensions of the option. Instead of plaintiff’s contract with Graves preventing a sale, it was conducive to it. He was, in a certain sense, “serving two masters,” but both were working to a common end — defendant wished to sell to Graves at a price agreed upon; Graves wanted to buy if he could sell at a profit. Plaintiff’s interest was to bring about both results — and it seems that this was done.

Defendant insists that his contract was to pay plaintiff a commission if he made a sale within thirty days. It is true that defendant had the right to put an end to the option and the relation of agent at the expiration of the thirty days from 27 May, 1903, if he had chosen to do so. It may be that if, on 11 June, 1903, when plaintiff and Bourne went to see him to get the extension, defendant had not consented to it, Graves would have raised the money and taken the land by 27 June, 1903 — the day upon which the option expired — in which case plaintiff would have been entitled to his commission. By extending the option and retaining the opportunity to sell upon the terms of the original option, and finally selling and receiving the money, we think that the defendant acted in such a way as to justify the finding of the jury that the agency was continued.

It is undoubtedly true, as contended by defendant, that a person cannot act -as agent for both buyer and seller, when their interests are antagonistic, or when' the terms of the purchase are unsettled. The authorities cited in the excellent brief of defendant’s counsel fully sustain this position. The answer to the contention is, that plaintiff, having brought Graves and defendant together and made a sale for an agreed price, bad a perfect right to accept a commission from Graves, to aid him, not in buying, but in selling the same property. That defendant recognized plaintiff was entitled to compensation for his services is shown by his testimony that, when he completed the sale and got the money, he left $500 with Graves “as a present to Ehnsland.” This amount plaintiff never took.

Upon a careful examination of the whole evidence, we think that there is no substantial controversy about the facts. His Honor correctly charged the jury that, if they found the facts to be as testified by all the witnesses, they would answer the issues as set out in the record. This was not directing a verdict, but instructing the jury in regard to the law, leaving to them the decision of the facts upon all of the testimony. As plaintiff had agreed, with the consent of defendant, to give one-half his commissions to Aiken, he was entitled to only $800, the amount awarded him by the jury. There is

No Error.